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In re M.C.V.

Court of Appeals of Texas, Fourth District, San Antonio

May 22, 2019

IN THE INTEREST OF M.C.V., a Child

          From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA02539 Honorable Eric Rodriguez, Judge Presiding

          Patricia O. Alvarez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice.

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

         On appeal, Dad argues the trial court erred in its December 10, 2018 order terminating his parental rights to M.C.V.[i] under Family Code section 161.002 because he was an adjudicated father to M.C.V. Because the trial court's March 22, 2019 nunc pro tunc order was void and the record conclusively establishes that Dad was an adjudicated father, the trial court erred in terminating Dad's parental rights under section 161.002. We reverse the portion of the trial court's order that terminates Dad's parental rights to M.C.V. We affirm the remainder of the trial court's December 10, 2018 order, and we remand this cause to the trial court.

         Background

         In late 2017, M.C.V. and M.D.V., both too young to attend school, were removed from their parents' care based on allegations of the parents' negligent supervision. Mom and Dad denied drug abuse, but both tested positive for methamphetamines. The Department created service plans for Mom and Dad, which they signed, but each failed to comply.

         A. Trial on the Merits

         On November 15, 2018, the case was tried on the merits to the bench. Mom voluntarily relinquished her rights to both children. The Department sought to terminate Dad's rights to both children on grounds (D), (E), (F), (O), and (P). See Tex. Fam. Code Ann. § 161.001(b)(1). Dad opposed termination of his parental rights and argued that the Department had not produced clear and convincing evidence to meet its statutory burden.

         At the close of trial, the trial court took the case under advisement; it did not orally pronounce a judgment at that time. In its December 10, 2018 written order (the original order), the trial court found that Dad was an alleged father of M.C.V., and Dad had not timely filed an admission of paternity or a counterclaim for paternity or for voluntary paternity to be adjudicated under Chapter 160. See Tex. Fam. Code Ann. § 161.002(b)(1). The trial court adjudicated Dad to be M.C.V.'s father, found that terminating Dad's parental rights was in M.C.V.'s best interest, and terminated Dad's parental rights to M.C.V. under section 161.002.ii See id.

         B. Dad Appeals

         Dad timely filed a notice of appeal, but he appeals with respect to only M.C.V. After the appellate record was filed, Dad filed his brief on March 5, 2019. He argues that the evidence is neither legally nor factually sufficient to support the trial court's December 10, 2018 order terminating his parental rights to M.C.V. under section 161.002.[ii] See id.

         C. Nunc Pro Tunc Motion

         On March 15, 2019, the Department filed in the trial court a motion for nunc pro tunc. The motion asserted that the grounds for termination in the trial court's December 10, 2018 order "were not listed correctly." The trial court signed a Nunc Pro Tunc Order of Termination (the nunc pro tunc order) on March 22, 2019. The Department filed its brief-which considers the nunc pro tunc order to be the final order-and argues that the nunc pro tunc order moots Dad's sole issue.

         Nunc Pro Tunc Order

         In this appeal, each party's brief assumes a different final order.

         Dad raises legal and factual sufficiency challenges to the original order that terminated his rights to M.C.V. under section 161.002. See id.

         The Department contends the nunc pro tunc order-which terminates Dad's rights under section 161.001(b)(1)-makes Dad's 161.002 challenge moot, and it argues the evidence was sufficient ...


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